Last Monday, the Copyright Office of the Library of Congress sent out its “triennial review” Notice of Inquiry of the Digital Millenium Copyright Act (DMCA) to determine possible classes of works exempt from copyright violations. The purpose of the rulemaking proceeding is to ensure that people who seek to make non-infringing use of digital copyrighted works are not adversely affected in doing so due to the prohibition on circumvention. Review of the DMCA is considered a “fail-safe” mechanism that prevents what the blanket ban on circumvention might otherwise encourage: an excessive burden on fair use of works.
Ten years later, the DMCA has proven ineffective. What was intended to be a law that protects against piracy has produced “unintended consequences,” including chilling of speech, suppression of research and innovation, and jeopardizing of fair use. In two previous rulemakings, public interest advocates voiced their concerns that the purpose of the statute has gone unfulfilled, but the concerns continue to fall on deaf ears.
The problem is the unnecessarily high burden the statute imposes on proponents of an exemption. Numerous parties, including Public Knowledge and the National Telecommunications and Information Administration (NTIA), have criticized the Copyright Office’s interpretation of the statute. They have argued that putting such a high burden on proponents is inconsistent with what Congress intended to afford the user community: to “ensure that technological innovation and consumer freedom are promoted, and illegal copying and distribution, ceased.” Ironically, the opposite has occurred. The burden of proof the Copyright Office imposes upon users contravenes the plain language of the statute. Requiring a “substantial” adverse effect on non-infringing use of a work, an actual harm in the marketplace, and first-hand knowledge of the harm is nowhere in the plain language of the Act and serves only to limit what qualifies as a non-infringing use. Given that in ten years of existence so few categories of works have qualified as exempt under the Act proves not only that the burden of proof on users is too high, but also that the triennial review has failed to protect numerous non-infringing uses. Essentially, the Act has created a “permission culture” that discourages innovation. The latest proceeding in 2006 serves as a perfect example: hundreds of requests, written submissions, and oral testimony were denied and only six narrow exemptions were granted.
Furthermore, one glaring oversight in the granted exemptions is fair use. Contrary to Congressional intent, the DMCA works to prohibit the fair use of many digital works. A perfect example occurred just a couple of days ago, when the McCain-Palin campaign asked YouTube to address the difficulties it has been having with wrongful DMCA takedowns of its videos. The Copyright Office repeatedly refuses to grant such exemptions for consumer fair uses. One reason for this is that “access control measures” are not defined in the Act, and what results is “throw[ing] out the baby of fair use with the bathwater of digital piracy.” The Act wrongfully distinguishes between copy controls and access controls, which are essentially the same thing. It is nonsensical to allow circumvention of copy control mechanisms without penalty while outlawing circumvention of an access control mechanism. Another reason for the lack of granting exemptions for fair use is a trafficking distinction: the anti-circumvention provisions of the Act prohibit enabling users to avoid access controls or copyright restrictions. Moreover, the danger in implementing “far reaching access-control technolog[y]” without identifying specific exemptions changes how copyright law has been defined by Congress and interpreted by courts for more than a century; it ignores fair use and limits the idea of free inquiry.
So how should this problem be solved? At the very least, it would behoove the Copyright Office to further define the scope of a “class of works.” Targeted exemptions could be crafted and provide specific guidance to content creators and users and remedy the particular harm to non-infringing uses identified in the rulemaking. As it now stands, “class of works” is construed too narrowly. Furthermore, establishing exemptions based upon the fair use principle will encourage rather than prohibit “digital inclusion” and public access to works.
Yesterday, Broadbandcensus.com hosted its inaugural forum “Broadband Breakfast Club” to discuss the 10th anniversary of the DMCA, which is on October 27. Views expressed at the breakfast were not surprising. At the very least, the discussion serves as a wake-up call to the Copyright Office that it needs to change the method of how it determines what is and is not an exempt work under the Act. Instead of going through the motions of the rulemaking proceeding and receiving continued backlash from the user community, the ineptitude of the process must be addressed and the lawful uses of digital copyright works be legitimately protected. If things stay as they are, the DMCA will continue to harm, not further a substantial public interest.